Legro v. Robinson, Court of Appeals No. 15CA0486

• Citation: 369 P.3d 785
• Decision Date: 31 December 2015
• Docket Number: Court of Appeals No. 15CA0486
• Parties: Renee LEGRO and Stephen Legro, Plaintiffs–Appellants, v. Samuel ROBINSON and Cheri Robinson, Defendants–Appellees.
• Court: Court of Appeals of Colorado

369 P.3d 785

Renee LEGRO and Stephen Legro, Plaintiffs–Appellants,

v.Samuel ROBINSON and Cheri Robinson, Defendants–Appellees.

Court of Appeals No. 15CA0486

Colorado Court of Appeals, Div. A.

Announced December 31, 2015

Bloch & Chapleau, LLC, Joseph D. Bloch, Trenton J. Ongert, Denver, Colorado, for Plaintiffs–Appellants.

Campbell, Latiolais, and Averbach, LLC, Michael O. Frazier, Phillip M. Khalife, Denver, Colorado, for Defendants–Appellees.

Opinion by JUDGE HAWTHORNE

¶ 1 In this interlocutory appeal, plaintiffs, Renee Legro and Stephen Legro, appeal from the district court's order (1) determining as a matter of law that Ms. Legro was a trespasser as to defendants, Samuel Robinson and Cheri Robinson, under Colorado's Premises Liability Act (PLA), § 13–21–115, C.R.S

. 2015; and (2) concluding that the working dog exemption in Colorado's dog bite statute, § 13–21–124, C.R.S. 2015, insulates the Robinsons from strict liability.

¶ 2 We conclude that the district court erred in determining that (1) as to the Robinsons, Ms. Legro was a trespasser under the PLA; and (2) the Robinsons' grazing permit creates a property interest sufficient to satisfy the dog bite statute's working dog exemption. Accordingly, we reverse the district court's order and remand the case for further proceedings.

I. Facts and Procedural History

¶ 3 The underlying facts in this case are set forth in Legro v. Robinson, 2012 COA 182, 328 P.3d 238

(Legro I ), and Robinson v. Legro, 2014 CO 40, 325 P.3d 1053 (Legro II ). As relevant here, the Robinsons are sheep ranchers who hold a "Term Grazing Permit" issued by the United States Forest Service that allows them to graze a certain number of sheep on federal land within the White River National Forest in Eagle County (the subject land). Ms. Legro sustained serious injuries when two of the Robinsons' predator control dogs, Tiny and Pastor, attacked her on a road located on the subject land while she was participating in a bike race sponsored by the Vail Recreation District. Both the Robinsons and the district were authorized, by permit, to access the road where Ms. Legro sustained her injuries.

¶ 4 The Legros sued, asserting claims of negligence, negligence per se, loss of consortium, and strict liability under the dog bite statute.

¶ 5 The Robinsons moved for summary judgment, arguing that the PLA preempts the Legros' common law claims, and that they are not subject to strict liability under the dog bite statute because of the working dog exemption in section 13–21–124(5)(f)

.¹ The district court granted the motion. It ruled that the Robinsons were "landowners" under the PLA, and thus the PLA preempts the Legros' common law claims. The court dismissed the Legros' strict liability claim. The court concluded that the working dog exemption in the dog bite statute applies because a "lessee" of land qualifies for the exemption, and the exemption's requirements are satisfied because the Robinsons owned the dogs and the dogs were working as predator control dogs when they attacked Ms. Legro.

¶ 6 The Legros appealed. A division of this court in Legro I

affirmed the district court's judgment that the Robinsons were landowners under the PLA, but it concluded that the court erred in holding that the working dog exemption defeated the Legros' strict liability claim. Legro I, ¶¶ 18, 38. The division construed the exemption to apply where a predator control dog was working on (1) the dog owner's property or (2) property controlled by the dog owner. Id. at ¶ 38.

¶ 7 The supreme court granted certiorari to consider whether the division in Legro I

correctly interpreted the working dog exemption's phrase "on the property of or under the control of the dog's owner." Legro II, ¶ 9. Contrary to the Legro I division's interpretation, the supreme court in Legro II interpreted this phrase as concerning the control of the dog, not the property. The supreme court held that the working dog exemption insulates a dog owner from strict liability if a person is bitten by a working dog while (1) on the property of the dog owner or (2) the dog is working under the control of the dog owner on either public or private property. Id. at ¶¶ 22, 23

.

¶ 8 The supreme court noted that the district court had not applied the correct test, and that the district court's analysis was based on its faulty premise that the Robinsons had leased the subject land. Id. at ¶ 24

. The court affirmed the Legro I division's judgment and remanded the case to the district court for further proceedings, including reconsidering the working dog exemption's applicability in light of its interpretation of the exemption's phrase "on the property of or under the control of the dog's owner." Id. It also noted that on remand the Legros could assert a claim under the PLA if they were able to satisfy the standard for a motion to amend their complaint. Id.

¶ 9 On remand, the Legros moved to amend their complaint to add a claim for relief under the PLA. The district court granted the motion.

¶ 10 In a C.R.C.P. 56(h)

motion, the Robinsons asked the court to determine the duty of care they owed Ms. Legro under the PLA. They argued that the Colorado Recreational Use Statute (CRUS), §§ 33–41–101 to –106, C.R.S. 2015, applies, so Ms. Legro was a trespasser.² Alternatively, they argued that Ms. Legro was neither an invitee nor a licensee under the PLA. They further argued that if Ms. Legro was an invitee under the PLA, then she was an agricultural invitee. In their response to the motion, the Legros argued only that the CRUS did not apply and that Ms. Legro was an invitee under the PLA.

¶ 11 Later, the Robinsons filed a "trial brief" with the district court, which discussed, among other things, the sheep grazing permit, case law, and the working dog exemption. In the brief, they informed the court that after trial they would request a finding that their sheep grazing permit satisfies the working dog exemption's "property of ... the dog's owner" requirement relating to the Legros' strict liability claim.

¶ 12 The district court issued a written order ruling on the Robinsons' Rule 56(h)

motion. It concluded that the CRUS did not apply to this case, and it determined that, as to the Robinsons, Ms. Legro was a trespasser under the PLA. In the same order, although neither party had requested that it do so before trial, the court ruled that the working dog exemption in the dog bite statute bars the Legros' strict liability claim because the Robinsons' grazing permit creates a sufficient property interest to satisfy the exemption.

¶ 13 The Legros filed, and the district court granted, a motion for interlocutory appeal pursuant to C.A.R. 4.2

. The Legros then petitioned this court for interlocutory appeal pursuant to that rule. We granted the petition as to the following issues:

1. Whether the district court correctly determined that Ms. Legro was a trespasser under the PLA, and thus the duty of care owed to her by the Robinsons was the reasonable care to protect against damages willfully or deliberately caused by defendants.

2. Whether the district court correctly determined that the Robinsons' grazing permit conferred a sufficient property interest to constitute "the property of ... the dog's owner" such that the working dog exemption applies to bar the Legros' statutory dog bite claim.

II. Ms. Legro's Status Under the PLA

¶ 14 The Legros contend that the district court erred by ruling that Ms. Legro was a trespasser, rather than an invitee, under the PLA at the time of the attack. The division in Legro I

concluded that the Robinsons were landowners under the PLA, and therefore, we focus on Ms. Legro's status as to the subject land. Because we conclude that, as to the Robinsons, Ms. Legro was not a trespasser, but a licensee, we reverse the district court's ruling.

A. Standard of Review

¶ 15 The district court determines under the PLA whether a plaintiff was an invitee, licensee, or trespasser at the time of injury. Reid v. Berkowitz, 2013 COA 110M, ¶ 10, 315 P.3d 185

. We review the court's determination as a mixed factual and legal question. Id. We defer to the court's credibility determinations, and will disturb its findings of historical fact only if they are clearly erroneous and not supported by the record. Id. But we review de novo the court's application of the historical facts to the governing legal standards. Id.

¶ 16 Under Rule 56(h)

, a district court may enter an order deciding a legal question "[i]f there is no genuine issue of any material fact necessary for the determination of the question of law." We review legal questions decided under Rule 56(h) de novo. Goodman Assocs., LLC v. Winter Quarters, LLC, 2012 COA 96, ¶ 20, 292 P.3d 1060.

B. Preservation

¶ 17 We first address a matter of issue preservation. On appeal, Ms. Legro asserts for the first time that the record contains evidence that the Robinsons took overt acts from which it can be inferred they invited her and other bicyclists to enter on the property. However, as the Robinsons correctly point out, Ms. Legro did not raise this argument before the district court. In fact, she argued the opposite: that there is no evidence of any affirmative act. So, we do not address Ms. Legro's "invitation" argument. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)

("Arguments never presented to, considered or ruled upon by a [district] court may not be raised for the first time on appeal.").

¶ 18 But Ms. Legro did argue in the district court that the Robinsons "certainly expected" the public to enter on the subject land because the Robinsons' grazing permit gives them no right to exclude others. Accordingly, we examine the Legros' contention that the relationship between the Robinsons and the Forest Service, which consented to Ms. Legro's entry, mandates the conclusion that the Robinsons consented to Ms. Legro's entry.

C. Legal Framework and Analysis

¶ 19 The PLA promotes a "state policy of responsibility by...